P (A Child) [2011] EWCA Civ 1793

Permission to appeal granted and appeal dismissed in respect of a mother of a child removed by local authority on the grounds that the mother had breached undertakings to live in a refuge and not to communicate with the father.

The mother, who was the appellant, had had her three elder children removed due to the risk presented by her inability to separate from the father who was dependent on alcohol and had a record of domestic violence.

When the fourth child, who was the subject of this appeal, was born, the local authority sought an interim care order with a plan that the baby would remain with the mother. By this time, the mother was believed to have separated from the father and gave undertakings that she would live in a woman's refuge and would not communicate in any way with the father. The mother would have preferred an interim supervision order but in the event the court made an interim care order.

The following day, a Saturday, the local authority learned that the mother had not in fact separated from the father, that they had been in regular contact and continued to sleep together and row with one another. The local authority therefore removed the child from the mother's care. However, the child was returned to the mother the following day following a request from the duty judge, who also ordered a proper judicial investigation of the mother's circumstances.

At this hearing, Her Honour Judge Hughes QC approved the local authority's plan, which was supported by the Guardian, and ordered that the child be removed again from her mother. The mother appealed on the basis that separating the child from her mother was disproportionate given that the only identified breach of the mother's undertakings had been a text to the father informing him of the outcome of the court hearing, and that there was an alternative refuge available that offered 24-hour supervision and was some distance from London.

The only substantive criticism of the judgment of HHJ Hughes was a passage that read:

"I have no confidence that a Refuge in which she is under 24 hour supervision is the answer because that will inevitably end and may in fact not be able to prevent her leaving the establishment or do shopping or other maters while the baby remains in the premises."

It was argued on the mother's behalf that 'inevitable end' carried supervision beyond the duration of an interim care order. The Court of Appeal held that this was not a sufficiently substantial criticism. The judge's 'essential message' was that she could not be sure that even full supervision would be enough to protect the child.

The judge had not, therefore, misdirected herself in law. The mother's argument about the refuge with 24-hour supervision and it being some distance from London were 'frail considerations' that would not justify any diminution of the safeguarding powers of the local authority.

Mr Mark Twomey (instructed by Vickers and Co) appeared on behalf of the ApplicantMs Hine (instructed by LB Brent Legal Services) appeared on behalf of the First Respondent, the Local AuthorityMs Fama (instructed by Shantilal Balakrishnan) appeared on behalf of the Second Respondent, the FatherMs Dixon (instructed by Deborah Baxter and Co) appeared on behalf of the Third Respondent, M, by her Children's Guardian

Lord Justice Thorpe:1. This is a case with a sad history since the applicant has lost three children into care through no failing of her own but an inability to free herself from the father who has an alcohol dependency and a record of violence within the home. The final removal was ordered by District Judge Greene on 10 July 2009 and that was the removal of the third child, J.

2. The local authority were obviously guarded on learning of the mother's pregnancy and shortly after the birth of the fourth child, M, they applied for an interim care order. The application was issued on 20 April and it was supported by a witness statement which within its chronology ended with an episode two days earlier on the 18th when the father revealed that he had taken alcohol. That was a danger signal since he had been imprisoned for violence against the mother in the summer of 2010 and had then undergone an alcohol rehabilitation programme from which he had been successfully discharged in March 2011. So an admission from his own lips that he had taken alcohol was of concern and may have triggered the application for the interim care order.

3. However that may be, there was a hearing in front of District Judge (MC) Coleman on 4 May. The threshold criteria were agreed and are set out in a document prepared for the hearing. Essentially the threshold relied on in the first two paragraphs was all drawn from the judgment of District Judge Greene of 10 July and was therefore history. Only paragraphs 3, 4 and 5 brought in more recent events between the imprisonment in July 2010 and the episode on 18 April when the father disclosed that he had taken a glass of whisky.

4. On that agreed threshold the only issue for the District Judge was whether to make an interim care order as sought by the local authority or an interim supervision order as sought by the parents. That choice was posited on an agreement between the local authority and the parents that even if they had an interim care order they would not exercise the power to remove M from her mother's care providing that some clear and far -reaching boundaries were met by the parents. The mother agreed seven paragraphs of performance. The first paragraph was that she would relocate to a women's refuge, and Mr Twomey, who appears for her today, tells us that that was achieved immediately after the hearing. She then in the following paragraphs or certainly in paragraphs 2 to 6 essentially agreed that she would have absolutely no contact or communication with the father and that she would immediately notify the local authority in the event that he attempted to make contact. The local authority were prepared to accept her promises and those of the father on the story, which they had no ground to disbelieve that the parents had been separated since the imprisonment in the previous summer.

5. So the issue for the District Judge was narrow, given that the threshold was agreed and that there was a management agreed between the local authority and the parents. Nevertheless she decided, in the exercise of her discretion, that the risks to the child demanded the more protective order and she made an interim care order to run until 29 June. All this seeming concord was of very brief duration, since on the following day the local authority received a telephone call from the daughter of the house in which the mother had been staying prior to her removal to the refuge. In the course of that conversation the local authority learned that the presentation of separation from both mother and father was completely dishonest. They had been communicating regularly and there had been passionate outbursts between them. They had on occasions been sleeping together and on occasions rowing together, all in the old pattern. So, hardly surprisingly, the next day 6 May the local authority removed M into safety.

6. That was Friday. Two days later on Sunday the mother's lawyers moved the duty judge seeking a restoration of M under the terms of the written agreement. Obviously the District Judge felt that there needed to be a judicial investigation as a matter of urgency and that he ordered. It seems that he requested the local authority to return M to her mother pending that investigation. The local authority had no obligation so to do, but in the exercise of sensible collaboration between social and judicial authorities M returned.

7. There was then a transfer to the Principal Registry and an order by Her Honour Judge Mayer on the day following transfer in which she recorded undertakings by the mother, which were specifically 1) not to leave the refuge unless accompanied by a member of staff and 2) not to leave M in the care of any other person: that until trial before the court on 17 May. It was HHJ Hughes QC who took the trial on that date and she at the end of the day at 4pm, and it was a Friday, announced the outcome as she was bound to do given the direction for urgency. She made it plain that M must again leave her mother's care for her protection and she gave the headline points upon which she had reached that conclusion. She said that she would give her full reasons as soon as she could. All parties agreed with that course and her written judgment was handed down on 24 May. There was then an application to this court with a notice of appeal of 31 May, which was referred to Munby LJ who on 9 June adjourned the application for oral hearing with appeal to follow immediately. He said :

"I am sceptical as to whether there is any real arguable merit but there is pressing need for finality."

8. The skeleton arguments were filed first in support of the mother's case by Mr Mark Twomey, who did not appear below, and then skeletons have come in from the local authority and the guardian, both in opposition. To that list must be added Ms Fama, who has appeared for the father this morning to support the mother's case.

9. Now Mr Twomey has put his case with his customary skill and persuasion. He says that the only breach of the agreement of 4 May that has emerged was the instance of the mother texting the father the outcome of the hearing on 4 May. He accepts that, given the extent of the deceit upon the local authority perpetrated by both parents, that hardly rescues him. He says that his case before the court today is that the separation of mother and child is quite disproportionate given that it was established before HHJ Hughes that an alternative refuge was available which was a long way from the father's home in London and which provided supervision 24 hours a day seven days a week. And so he says that the judge should not have ordered a second separation without a proper assessment of risk and he says that the essential questions that the judge should have asked herself, and which she failed to ask, are set out in his skeleton argument at paragraph 30. She should have asked what was the type of potential harm, what was the risk of the parents making contact, what was the risk to the child, assuming such direct contact was made. He submitted that the answer to that ultimate question should be, given supervision within the refuge, arguably no risk, alternatively most minimal risk.

10. So turning to the judgment of HHJ Hughes, Mr Twomey makes two essential criticisms having accepted all of paragraphs 1 to 13. He first makes a small criticism at paragraph 14 which I need not dissect. His essential criticism is of the judge's direction as to the law in paragraph 16 where she said:

"The issue before me is removal. I should only remove M on an interim basis if I am satisfied her safety is at risk (see Re B (Care Proceedings: Interim Care Order) [2009] EWCA Civ 822.) Separation is only to be ordered if the child's safety including physical, emotional or psychological demands it."

11. Now it is common ground that the case with the neutral citation given by the judge is not Re B but Re LA (Care: Chronic Neglect). That is a very small slip because the later case of Re Bconsidered and endorsed the decision in LA.

12. Mr Twomey's second criticism is persuasive, concerning the point where the judge said:

"I have no confidence that a Refuge in which she is under 24 hour Supervision is the answer because that will inevitably end and may in fact not be able to prevent her leaving the establishment to do shopping or other matters while the baby remains in the premises."

Mr Twomey says that "inevitable end" carries supervision beyond the brief life of an interim care order. That is probably right, but it does not seem to me that it is a sufficiently substantial criticism. The judge's essential message in that sentence was that she could not be sure that even full supervision would be sufficient to protect this child.

13. So I come back to the essential question did the judge misdirect herself in law. In my view she did not. What she said was within acceptable parameters even if it was not a perfect exposition of the cases in this court. The real point for me is that those authorities relate to an application by a local authority having no power at all in relation to the child but seeking power for the purposes of removal. Now that was simply not this case. The local authority had acquired that power on 4 May by a determination of a District Judge in the exercise of a discretion. That order was not challenged on appeal. It ran until 29 June. So on 17 May a proper analysis shows that the effective application was the application of the mother to discharge the interim care order. Without the discharge of that order, the local authority had the power and the discretion to exercise the power, namely the power of removal. So upon what basis could the mother have advanced a case for disempowering the local authority when, since the order was made on 4 May, there had been no significant change of circumstances to justify disempowering? Indeed there was a sad history of deceit which only heightened anxiety on the issue of child protection. It enhanced risk and it enhanced rather than diminished the need for protection.

14. So Mr Twomey has said that the only factual ground upon which the judge could be invited to disempower was the fact that during the course of the morning a specific alternative refuge had been discovered which had the advantage of 24 hour supervision and which had the advantage of being remote from the father's address. In my judgment neither of those relatively frail considerations would begin to justify the diminution of the safeguarding powers of the local authority. HHJ Hughes saw this case clearly. The local authority's opposition was fully supported by the guardian. She did not even call on the local authority or the guardian to address her having heard the case submitted on the mother's behalf and I am in no doubt at all that HHJ Hughes was correct to see the case so clearly, so starkly. I do not think it was really open to her on the evidence that she heard to see it otherwise. The oral evidence that she heard from the parents, and from the witness who had revealed the truth to the local authority, hardly left it open to her to grant the mother's application, an application which had failed on 4 May. Since that date fact and circumstance only indicated that the District Judge had made a wise choice on the 4th and that choice deserved to be upheld.

15. So for all those reasons I will grant permission only in deference to the very careful presentation both in writing and orally the court has received from Mr Twomey, but I would dismiss the consequent appeal.

Lord Justice Etherton: 16. I agree. I too would pay tribute to the submissions of Mr Twomey on behalf of the appellant. I would find it quite impossible, however, to assess on the facts of this case that HHJ Hughes acted outside the ambit of a legitimate exercise of a judicial discretion, that is to say that she was plainly wrong.